Cvetic v Sakata Rice Snacks Australia Pty Ltd &
[2010] VCC 1468
•15 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-02179
| MILIJANA CVETIC | Plaintiff |
| v | |
| SAKATA RICE SNACKS AUSTRALIA PTY LTD | First Defendant |
| and | |
| CAMBRIDGE INTEGRATED SERVICES (VIC) PTY LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 September 2010 |
| DATE OF JUDGMENT: | 15 October 2010 |
| CASE MAY BE CITED AS: | Cvetic v Sakata Rice Snacks Australia Pty Ltd & Cambridge Integrated Services (Vic) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1468 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(37)(c), s.134AB(38)(b) and (d) – psychiatric injury – pain and suffering only – whether “severe”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with | Drakulic Lawyers |
| Ms M Pilipasidis | ||
| For the Defendants | Mr S A Smith | Herbert Geer |
| HIS HONOUR: |
Introduction
1 By way of Originating Motion dated 20 May 2009, Milijana Cvetic (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for a psychiatric injury suffered by her throughout the course of her employment with Sakata Rice Snacks Australia Pty Ltd (“the first defendant”) and, in particular, over the period between approximately March 2003 and August 2003 (“the injury”).
2 The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.
3 The application was heard over one day and the following evidence was adduced:
(a) The plaintiff gave oral evidence and was cross-examined; (b) The plaintiff tendered pages 6-38, 48-151 and 189-194 of the Plaintiff’s Court Book (“Exhibit A”); (c) The defendants tendered the following evidence: (i) The plaintiff’s taxation returns for the years ending 30 June 2009 and 30 June 2010 (“Exhibit 1”);
(ii) Pages 12-40 of the Defendants’ Court Book (“Exhibit B”).
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).
5 The plaintiff relies on paragraph (c) of the definition of “serious injury” contained in s.134AB(37) of the Act. That paragraph reads:
“serious injury means—
(a) … . . . (c) permanent severe mental or permanent severe behavioural
disturbance or disorder. … .”
6 The mental or behavioural disturbance or disorder for the purposes of paragraph (c) is variously described as an Adjustment Disorder with Mixed Anxiety and Depressed Mood, Panic Disorder and a major depressive episode associated with psychotic features: (see T3, L5-10).
7 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a) “the injury” suffered by her arose out of, or in the course or due to the nature of her employment with the first defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]); (b) the mental or behavioural disturbance or disorder must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]); (c) the “consequences” to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” must be “severe” – that is, “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of
being severe”: (see s.134AB(38)(b) and (d) of the Act) (my emphasis);
The test for “severe” as set out in paragraphs (b) and (d) of s.134AB(38) of the Act is sometimes referred to as the “narrative test”.
8 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]);
(c)
must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]).
The Issues
9 I was informed by counsel for the defendants that:
(a) the issue is whether “the injury” is “severe”; (b)
the psychiatrist retained on behalf of the defendants makes a diagnosis of a Major Depressive Disorder with psychotic features, which is now in “remission” (and thus raising issues as to the “permanency” of any psychiatric condition); and
(c)
for the purposes of this proceeding, there was no issue that the plaintiff suffered a compensable psychiatric condition: (see T11, L15 – T12, L5).
The Plaintiff and the Injury
10 The affidavits sworn respectively by the plaintiff on 22 December 2008 (at page 6 of Exhibit A, which I shall refer to as “the first affidavit”) and on 6 September 2010 (at page 18 of Exhibit A, which I shall refer to as “the second affidavit”) were sworn to be true and correct, save for paragraph 13 of the second affidavit, which was explained to mean that the plaintiff has one or two headaches a week and they vary in terms of time.
11 In the first affidavit, the plaintiff gives the following pertinent evidence:
•
She is a forty-two-year-old (born 5 March 1968) married woman who was born in Bosnia, where she attended school to Year 11.
•
She did not work in Bosnia and when war broke out in that area in 1992, she and her family moved to Austria, where she worked for approximately six years in a nursing home as a carer.
•
She and her family migrated to Australia in 1999, where she initially learned English at the Adult Migration Education Service and completed a beginner’s certificate in English.
•
In January, 2001, she commenced employment with the first defendant as a machine operator, initially working on a casual basis for approximately eighteen months, and thereafter full-time.
•
Her work duties involved sorting and packing biscuits and crackers on a production line, and lifting large bins of biscuits onto the conveyor line. She usually worked in teams of two.
•
Her normal hours of work were from 5.00 am to 2.30 pm on weekdays and she performed overtime of approximately one-and-a-half hours daily, and also sometimes on Saturdays.
•
In late 2001, she became pregnant with her second child and when at work in January 2002, she began to experience bleeding, which made her very worried, as she had previously had an ectopic pregnancy. She attended hospital and was off work for a day.
•
The plaintiff describes the circumstances surrounding the onset of her injury in the following terms:
“Upon my return to work, I conveyed my concerns in relation to performing heavy lifting to my manager, Mr Steve O’Rafferty and I was excused from undertaking such tasks. Once my co-workers learned that I had been excused from heavy duties, their attitudes towards me changed dramatically. Team members started harassing me with frequent angry comments, such as I was using my pregnancy to avoid doing work, and that I was ‘stinking’ or ‘smelly’. I was approached by one worker, Ljubica Kada, who told me I had body odour. Co-workers began holding their noses when they walked past me, and they spread gossip that I smelled. The bullying behaviour made me feel isolated, humiliated and anxious, and I often got very upset and tearful. Comments were made that I was being protected as my brother and mother also worked at Sakata. My team leader Milica Karic was responsible for much of the bullying. On one occasion she made me push a 100 kg trolley, although I had been excused from heavy tasks whilst pregnant. She also made me stand very close to the packing line whilst pregnant so that my abdomen touched the hot machinery. One occasion, Ljubica Kada made a point of going to a dirty toilet, indicating that she would rather use this one than share the clean one I had used.”
(See paragraph 7 of the first affidavit).
•
Although she complained to the manager, Mr Steve O’Rafferty, nothing was done and she continued to work up until 24 May 2002, when she went on maternity leave. Her son, Stefan, was born on 1 June 2002, after which the plaintiff returned to work on 11 March 2003.
•
Shortly after her return to work, the bullying re-commenced and she attended her local general practitioner, Dr Sam Honigman, on or about 31 March 2003, who confirmed that she did not have a personal hygiene problem.
•
The bullying continued with a variety of people involved and the plaintiff commenced to experience anxiety, depression, panic attacks and frequent crying.
•
She again attended her general practitioner, Dr Honigman, on 30 June 2003, and he sought a meeting with Mr O’Rafferty, but this did not occur.
•
On or about 26 August, 2003, she was placed in another part of the factory doing different work and she was kept in an isolated position. She commenced to experience hot flushes, difficulty in breathing, blurry vision, weakness and ultimately fainted, whereafter she was taken to the Western Werribee Hospital by ambulance and treated in casualty for a “panic attack”.
•
On 27 August 2003, she attended her local doctor and was certified unfit for work until 23 September 2003, after which she returned to work where she became anxious and depressed and suffered a further panic attack and was taken to the company doctor in Sunshine.
•
On or about 28 August 2003, she lodged a WorkCover claim which was accepted by Cambridge Integrated Services on 10 September 2003.
•
As at the time of her first affidavit, she was suffering from severe and debilitating panic attacks, three or four times a week, and was prescribed Avanza and Xanax by Dr Honigman for her anxiety and insomnia.
• In particular, the plaintiff states: “Around this time, I had many experiences where I would hear the voices of those who harassed me taunting me again in my head, even when I was in the safety of my home. I would hallucinate that my co-workers, Milica in particular, were in my home to attack me, although they were not. This was particularly frightening and frequently lead to suffering a panic attack. I had extreme difficulty sleeping, and was prescribed sleeping medication. I would have nightmares several times a week after being back at the factory environment, and wake up panicking feeling hot and sweaty.”
[sic]
(See paragraph 16 of the first affidavit).
• Dr Honigman referred the plaintiff to the psychologist, Ms Fiona Lacy, who commenced treatment on 17 September 2000, and later she was referred for a brief time with Dr Vladimir Bosanac, who was a senior registrar with psychiatric training. In March 2004, she began treatment with a further psychologist, Mr Dusan Milosevic, who speaks her language, and in about June 2004, she commenced to see the psychiatrist, Dr Asoka Polonowita. • During this period of time, the plaintiff gained approximately 20 kilograms, as she tended to eat “while I felt nervous”, continued to suffer from nightmares, although less frequently, and continued to suffer from insomnia. In particular, she continued to suffer panic attacks where she felt she could not breathe and was choking, as well as having heart palpitations, sweating and experiencing tremors. In particular, she states: “… These attacks would be sudden, and occur at least twice a week, lasting about five to ten minutes at a time. At times I would feel hopeless and as though there was no future for me. Once or twice a week I would experience stress-related headaches, and I could feel the pain in my forehead and behind my eyes, radiating to my shoulders. I had thoughts of suicide, including that I would go to the factory and hang myself.”
(See paragraph 18 of first affidavit).
•
In or about October 2005, her general practitioner, Dr Honigman, was of the opinion that her anxiety and depressive symptoms had improved and that she would have the capacity to return to part-time employment, initially 20 hours per week, in similar work to her previous employment, but not with the same company. She was willing to consider any suitable employment but was fearful that she might experience the same situation at her new employer if employed as a process worker.
• On 5 September 2005, her payments for compensation were terminated. •
In 2006, she completed a Certificate III in Aged Care Work at Victoria University, which she paid for herself. In April 2007, she also obtained a Certificate III in Pathology Specimen Collection and in December 2007, she obtained a Certificate IV in Pathology Specimen Collection.
•
On 1 July 2006, she commenced employment as an aged care worker with Prime Life Glendale Hostel in Werribee, working approximately 22 hours a week. At the same time she started working two days a week with Benetas, St George, in Altona Meadows Aged Care, and over time increased her hours at Prime Life to 26 hours a week.
•
At the time of her first affidavit (December 2008), the plaintiff describes her condition in the following terms:
“In the past two years or so I have gradually coped well and my mood and general condition has improved somewhat. I feel better in myself for the fact that I am working and when at work it takes my mind off some of my problems. However I still think about what happened and in particular the way the team leader had treated me. Once or twice a week I suffer from panic attacks with hyperventilation and palpitations, particularly when I think about the harassment. I continue to feel depressed and tearful much of the time. I have also nightmares several times a week, usually about being back in the factory situation and being abused.
In addition to my nightmares I have had difficulty sleeping, having difficulty getting off the [sic] sleep and a significant loss of energy. I have also had problems with my memory and concentration. ….”
[my emphasis]
(See paragraphs 23 and 24 of the first affidavit).
12 She continued to seek treatment from Dr Milosevic, Dr Polonowita and the general practitioner, Dr Honigman, but with reduced frequency. At that time she was taking the anti-depressant, Effexor, 100 milligrams at night, as well as Oxazepam, half 30 milligrams twice daily. She takes Panamax as required for headaches.
13 In her second affidavit, the plaintiff gives the following pertinent evidence:
• She describes her psychiatric position as “the same”. • She continues to attend her general practitioner, Dr Sam Honigman, once or twice per month “depending on how I am feeling”. He prescribes medication and provides her with counselling. • She continues to consult with the psychiatrist, Dr Kaplan (who took over her treatment after the retirement of Dr Polonowita), once every month and he prescribes Effexor for depression and anxiety. • She continues to work for Prime Life as a personal care attendant, working four days a week, 5 hours per day. • She also commenced employment with Dorevitch Pathology as a pathology collector on 21 May 2010 and works part-time, a minimum of 24 hours per fortnight, with some weeks where she works more hours. • She ceased working for St George on 31 May 2010. • She describes her current symptoms in the following terms: “I have found that even with work distracting me I have continued to suffer from panic attacks sometimes two times a week, sometimes more often. There is nothing specific that causes the panic attacks, although thinking about what happened to me causes me to become angry and upset.
More often than not I simply cry and I try to avoid my family seeing
me as I do not like them to see how upset I am.I am easily irritated and find that small things set me off. I tend to be very short tempered with family, for small insignificant things which in the past would not have upset me.
I continue to suffer from nightmares at least two to three times a week. My dreams are always of me being at work and people laughing at me and treating me differently.
I continue to experience problems sleeping. My sleep is more often interrupted than not. The lack of sleep makes me cranky and causes me to feel tired and I lack motivation … .”
[my emphasis]
(See paragraphs 8, 9, 10, 11 and 12 of the second affidavit).
•
She takes Effexor, 150 milligrams, Oxazepam, a tranquiliser, 30 milligrams, half twice per day, and over-the-counter Panamax for the headaches. About a year ago she tried to stop taking the medication but found that her anxiety attacks increased and she could not cope.
•
There would be times when she thought she would be better not being alive, however the thought of her family stops her from doing anything about it.
•
Her social life has been greatly affected and she tends not to socialise with people.
•
She prefers having two part-time jobs going, rather than one full-time position so that in the event she is unable to cope with the demands of work at one job, she has the second job.
Cross-examination of the Plaintiff
14 Under cross-examination, the plaintiff gave the following pertinent evidence:
•
She is currently working as a pathology collector for Dorevitch and also working at an aged care centre for Prime Life, and between those jobs she works an average of about 37 hours a week and “sometimes more than that”: (see T14, L19-26).
•
At Dorevitch she could work up to 20 hours per week and could be working up to 45 hours per week when the hours from Prime Life are considered.
•
She was working 32 hours per fortnight at St George, together with Prime Life, up until May 2010, when she ceased at St George and started at Dorevitch Pathology.
•
For the year ending 30 June 2009, she accepted that her taxation return recorded her earning $53,617.00 and for the year ending 30 June 2010, she accepted that her taxation return recorded her earning $51,786.00: (see generally “Exhibit 1”).
•
She accepted that her earnings for the year ending 30 June 2002 were $33,825.00 and that she was earning about $565.00 gross when working for the first defendant.
•
She was asked some questions about any time off work of recent times and her day-to-day hours of work, and the following evidence was given:
“Q:
I suppose what the question is about, can you give some indication as how often that may be and what sort of time you’ve had off?---
A:
I really don’t have much time off of my work because I have two jobs, one is in the morning, which I continue to go there and then have break between the work and then I start late or on, in the afternoon to work ……
Q: What time do you start in the morning?--- A: I start in the morning at seven o’clock. Q: Do you drive to work?--- A: Yes. Q: Do you stay there for how long?--- A: For five hours. Q: Until about lunchtime?--- A: Yes. Q: And what did you do after that?--- A: Go home. Q: And how long do you stay at home?--- A: Until four o’clock, three-thirty. Q: And then you drive to where then?--- A: To the second, to my first job Prime Life. Q: Prime Life?--- A: In Werribee, yes. Q: And you work from when to when then?--- A: From four to ten. Q: Then drive home after that?--- A: Yes. Q: Is that essentially Monday to Friday, is it?--- A: No. Q: What days?--- A:
I working on afternoons from Wednesdays to Saturdays and the other days I never know when I working. But before I start to do Dorevitch I was working three days on another job which is Thursday, Friday, Saturday.”
(See T19, L17 - T20, L10 – 10).
•
Some days she enjoys her job, some days not, but she feels “better because I [sic] working”: (see T20, L29-30).
•
When working at Dorevitch, she works in a collector centre collecting specimens, including blood and urine.
•
During 2010, she attended Dr Kaplan (her treating psychiatrist) on 2 March 2010, 27 April 2010, 28 June 2010 and on 14 September 2010 (the day before the hearing commenced).
•
In 2009, although she could not precisely remember the exact number of times she visited Dr Kaplan, she did not disagree if the records revealed such attendances were on 28 July 2009, 8 September 2009 and 7 December, 2009.
•
After being taken to her various TAFE certificates which she has obtained, it was suggested to her that she had no difficulty with her memory or concentration which would have prevented her from successfully completing those courses. In reply she stated:
“Yes, I do have, but I give my best just to finish the courses and get back to work and get better. And none of the courses was full time and none of the courses was – I did not find them very heavy and they did not have big exams to do. There was exams just to tell them how you do this and that and this. I can speak English, and I can’t really write very good English, but I can read as well.”
[sic].
• She has a car which she uses.
Further Affidavit Material
15 The plaintiff relies on an affidavit from her husband, Braco Cvetic, sworn 6 September 2000 (at page 22 of Exhibit A). He describes that prior to her “psychiatric injury”, his wife was a calm and happy person and they had a full life together: (see paragraph 4, page 23 of Exhibit A). In particular, he deposes:
• that her medical condition has not changed significantly over the years, although she has returned to work and obtained TAFE qualifications. She cannot cope with any pressure or stress. In particular, she becomes easily overwhelmed and frequently cries, has a constantly lowered mood, and at least once or twice a week experiences severe anxiety and panic attacks; • that she may do harm to herself because she becomes so low, and on some occasions her husband has followed her and found her sitting on the banks of the Yarra River staring at the distance; • that her sleep is very restless and interrupted and she only manages to get about six hours of sleep per night and seemingly has frequent nightmares about her work with the first defendant; • that she is losing confidence and trust in people and is less sociable than she used to be, and rarely goes out. 16 The plaintiff also relies on an affidavit of her daughter, Jasna Cvetic, sworn 6 September 2010 (see page 26 of Exhibit A). In that affidavit, her daughter, who is a nurse, describes her mother to be one who would frequently go out and socialise with friends prior to her illness. Since her illness, her mother does not socialise or go out of her way to see people. In particular, she deposes:
•
that she has taken on a “parenting role” with her younger brother and she has taken on “most of the responsibility” with housework, such as cooking and cleaning;
•
although acknowledging that her mother has “improved over the years” and has been “able to return to work”, she notes that she relies on numerous medications for anxiety and panic attacks and although her mood seems to “improve once she has taken them”, she always seems to go back down again.
Medical Treatment of the Plaintiff
17 The plaintiff’s treating general practitioner has been Dr Sam Honigman, who has supplied two reports (see page 48, and at page 49A of Exhibit A). In his first report, he notes that the plaintiff initially consulted him on 31 March 2003 and gave a history that workers at the premises of the first defendant accused her of having an “unpleasant body odour”, resulting in much stress to the plaintiff. She was again seen on 30 June 2003, and again complaining of antagonism from other workers at her place of employment, which she found very stressful. At that time, she complained of insomnia, panic attacks and repeated crying, and anxiety attacks, resulting in a loss of consciousness at work on 26 August 2003.
18 When seen on 27 August 2003, the plaintiff had severe symptoms of anxiety and depression and physical symptoms of headache and dizziness. She was referred to the psychologist, Ms Fiona Lacy, and treated with anti-depressants and anxiolytic medication. Dr Honigman referred the plaintiff to Dr Bosanac, and he also noted that there was a possible paranoid psychosis as she appeared to experience unpleasant visual and auditory hallucinations.
19 In his report dated 8 June 2010, Dr Honigman describes the plaintiff as suffering from anxiety symptoms, especially panic episodes and insomnia, for which she takes regular Murelax, 30 milligrams, half twice a day. She also suffers from depression which is controlled by taking Effexor, 150 milligrams daily, and psychiatric treatment.
20 The psychologist, Fiona Lacy, has supplied a report dated 9 April 2004 (see page 51 of Exhibit A) wherein she describes first treating the plaintiff on 17 September 2003 and continued treating her until mid-2004. She was of the opinion that the plaintiff was suffering a major depressive episode with psychotic features and that the workplace harassment intensified and exacerbated pre-existing psychological difficulties. She recommended that she be treated by a Bosnian speaking psychologist and also be referred to a psychiatrist.
21 The psychiatry registrar, Dr Vladimir Bosanac, has supplied a report dated 4 May 2004 (see page 55 of Exhibit A) wherein he describes first treating the plaintiff on 3 December 2003 on request from her general practitioner. He spoke the same language as the plaintiff. He diagnosed the plaintiff to be suffering from a major depressive illness, severe range, with associated psychotic features. Given that he was not fully trained at that point as a psychiatrist, Dr Bosanac recommended that she be referred to a psychiatrist.
22 Dr Honigman referred the plaintiff to the psychologist, Dr Dusan Milosevic, who has supplied a psychological report dated 27 May 2004 (see page 60 of Exhibit A), a psychological report referred to a current patient review dated 27 September 2006 (see page 89 of Exhibit A) and a psychology review form dated 15 January 2008 (see page 104 of Exhibit A).
23 When documents were being tendered in this proceeding, counsel for the defendants objected to the tendering of material from Dr Milosevic on the basis that he was either never a registered psychologist, or if once was a registered psychologist, had been struck off and serving a term of imprisonment. Counsel for the plaintiff accepted that Dr Milosevic was serving, or had served a term of imprisonment which she thought was related to Medibank fraud (not related to the plaintiff). In all the circumstances, and with a lack of any evidence supporting any of these assertions, I ruled that the reports of Dr Milosevic could be tendered and relied on by the plaintiff.
24 In his first report dated 27 May 2004, Dr Milosevic essentially made a diagnosis of Major Depressive Disorder and that at that time was incapable of returning to any type of work.
25 In his psychology review form dated 15 January 2008, he diagnoses the plaintiff to be suffering from depression with sleep disturbance.
26 Dr Polonowita had supplied psychiatric reports dated 15 March 2005 (see page 64 of Exhibit A); 5 May 2005 (see page 71 of Exhibit A); 2 September 2005 (see page 72 of Exhibit A); and 11 October 2005 (see page 78 of Exhibit A).
27 Dr Polonowita initially saw the plaintiff on 3 June 2004, and after obtaining her history and making his examination, considered that she was suffering an acute Adjustment Disorder directly related to a psychologically unhealthy work environment. He prescribed Effexor, 150 milligrams daily. In his initial report, he notes that the plaintiff was “making gradual progress for the better” and would be “ready for a return to work program in about three months’ time”: (see page 70 of Exhibit A).
28 In his September 2005 report, Dr Polonowita comments that the plaintiff was fit to start a return to work program as a process worker, but not with the first defendant.
29 In his October 2005 report (“the last report”), Dr Polonowita considered the plaintiff was suffering severe depression, anxiety and panic disorder and had also manifested auditory hallucinations. In particular, Dr Polonowita states:
“Mrs Cvetic’s symptom complex, depression, anxiety and auditory hallucinations, could occur in a psychotic condition. These symptoms could occur in the following conditions:-
1. Schizophrenia
2. Major depression
3. Acute brief psychosis or psychogenic psychosis
Now, the content of the hallucinations gives a clue to the correct diagnosis. Mrs Cvetic heard the voices of her co-workers, particularly the Team Leader Malica Karic. The content of the hallucinations is also work related.
Mrs Cvetic suffered from an acute brief psychosis superimposed on an adjustment disorder.
Under extreme stress, a person besides being depressed and anxious could manifest psychotic symptoms. This is exactly what happened to Mrs Cvetic. She was under extreme stress at work and it culminated in a panic attack and her fainting. The source of Mrs Cvetic’s stress followed her to her home, ‘hounding her’, so to say.
Mrs Cvetic’s depression and anxiety has no other cause except stress at work. The Medical Panel had given a very clear, precise history and opinion and I totally agree with it. Mrs Cvetic has a very clear work related psychological injury.”
(see page 84 of Exhibit A).
30 Dr Polonowita was also critical of the rehabilitation services, in that although he considered she had some potential capacity for employment, she needed assistance and guidance by those organisations. He comments that going through such a process has now left her “unfit for any form of work”: (see page of 85 of Exhibit A).
31 The current psychiatrist treating the plaintiff is Dr Albert Kaplan and he has supplied a report dated 1 March 2010 (see page 108 of Exhibit A). Dr Kaplan first started treating the plaintiff on 10 March 2009 after the retirement of her earlier psychiatrist (presumably Dr Polonowita).
32 Dr Kaplan obtained a history which, in part, included the following:
“Mrs. Cvetic stated that she was seen by a psychiatrist and a psychologist and her condition slowly improved over the following 2 years, although it never resolved. She was keen to return to work hoping that doing so would be beneficial, and she then underwent further training and gained an aged care certificate, having funded this course herself. In approximately 2005 she commenced 2 months work experience with Primelife, working in an aged care facility and she was then offered a job at this facility. She then obtained a second similar position and has worked in both jobs ever since. She works 26 hours and 22 hours on alternate weeks at Primelife and 16½ hours a week at Benetas Nursing Home, a high care facility. She is a permanent employee at both facilities. She stated that she is happy with her jobs, although she tends to avoid talking to people because of her fear of being criticized, having become intensely sensitive. She works largely alone and her interaction with other staff is limited. … “
(See page 111 of Exhibit A).
33 The plaintiff informed Dr Kaplan that her memory fluctuates but has improved and there are some days when she does not feel depressed, generally when she is distracted by her work or domestic tasks. The slightest upset will trigger feelings of depression and then she seems to lose her energy and motivation. She has some nights when she experiences nightmares which interfere with her sleep, and sees her friends now quite infrequently.
34 During the mental state examination, Dr Kaplan has noted:
(a) the plaintiff is a middle-aged woman who dresses neatly and casually; (b) invariably during examinations, one of her legs will repetitively shake; (c) the plaintiff speaks freely during consultations and is polite and direct in her manner, there has been no further auditory hallucinations other than those initially occurring and she has displayed no abnormalities of speech, thinking or perception; (d) the plaintiff has appeared intensely anxious and on edge during the consultations and at times has become fearful. 35 Dr Kaplan is of the opinion that most probably the plaintiff developed an Adjustment Disorder with Mixed Anxiety ad Depressed Mood associated with panic attacks. Furthermore, such depression intensified and there was probably a superimposed major depressive episode associated with psychotic features. In particular, he states:
“… She presents as a highly motivated and industrious woman who has since rehabilitated herself back into the workforce, obtaining alternative employment, working as an aged care worker.
Mrs. Cvetic’s condition has improved since she commenced her current employment, however, it has not resolved. She remains emotionally labile and describes persistent anxiety and panic attacks. She has developed a distrust of supervisors, and even though her current supervisors do not mistreat her, she feels uncomfortable and intensely apprehensive in their presence. Her current work suits her mental state because she has limited contact with colleagues and supervisory staff. She continues to experience intrusive thoughts and recurring nightmares in relation to the previous work stresses, and she suffers from occasional panic attacks. She has a greatly reduced capacity to cope with stress and pressure. She is socially withdrawn, has difficulty with her memory and concentration, and experiences sleep and appetite disturbance. She has lost her libido and her self-esteem has been damaged. As a result, she has become hypersensitive. She now leads a restricted existence and her life largely revolves around her home and work.
Given the long duration of Mrs. Cvetic’s psychiatric condition and her persisting symptoms, her prognosis is likely to be unfavourable and her condition can be regarded as having stabilized. Her symptoms are likely to persist for the foreseeable future. Given the impact upon her lifestyle and her emotional fragility, Mrs. Cvetic’s psychiatric condition can be regarded as a moderate to severe disorder. She is evidently capable of undertaking her current employment, however, she is not capable of resuming her former employment at Sakata, working in any factory environment or any other environment where there would be a need to have significant interaction with other staff or supervisors.”
(See page 117 of Exhibit A)
36 The plaintiff relies on the following certificate from the Medical Panel:
(a)
a certificate dated 16 June 2004 certifying that, in the opinion of the Panel, the plaintiff’s –
“… incapacity for work is still materially contributed to by the
claimed anxiety and depression injury.”
(See page 119 of Exhibit A).
(b)
an opinion dated 8 January 2007 certifying that, in the opinion of the Panel, the plaintiff suffered from a 20 per cent psychiatric impairment resulting from the “accepted psychiatric impairment injury”.
Medico-Legal Reports
37 The plaintiff relies on the following medico-legal reports:
(a) The reports from the psychiatrist, Dr Nicholas Ingram, who medico- legally examined the plaintiff on 23 February 2006 (see report at page 120 of Exhibit A), and on 16 October 2006 (see report dated 16 October 2006 at page 125 of Exhibit A). Such reports were obtained for the agent of the defendants. (b) The report from the psychologist, Mr Robert Wilks, who medico-legally examined the plaintiff on 27 March 2008: (see report of same date at page 131 of Exhibit A); and (c) The report of Associate Professor N Paoletti, who medico-legally examined the plaintiff on 19 August 2010: (see report of same date at page 135 of Exhibit A). 38 After his first examination, Dr Ingram was of the opinion that the plaintiff was suffering from a major depressive illness in association with a Panic Disorder with some degree of secondary agoraphobia. At that time, Dr Ingram did not think that the plaintiff’s condition had stabilised.
39 When seen on the second occasion, Dr Ingram obtained the history that the plaintiff had done the aged care course and had obtained employment over the last few months, working three to five days a week for 5 hours a day. Her mental state examination revealed that she had a noticeable tremor of the right knee and although there was no psychomotor retardation, her affect was depressed and she was tearful on several occasions. Furthermore, Dr Ingram noted that although there was some reactivity, she was able to smile when talking about her children and generally engaged well, with no formal thought disorder or perceptual abnormality, and her memory, concentration and intelligence appeared normal. At that time, he considered the plaintiff to be suffering from both a Panic Disorder, with some degree of secondary agoraphobia, and major depression, which were related to her experiences at work with the first defendant.
40 In particular, as at October 2006, Dr Ingram stated:
“Since I last saw Mrs. Cvetic, she has been able to do some retraining as an aged care assistant and has gone back to work between sixteen and twenty hours a week. Associated with this there has been a slight improvement in her depression, though she still has significant psychiatric symptoms. In particular, there has been little improvement in her panic symptoms and despite the fact that she has been working she has continued to be depressed much of the time.
She tried an increase in her antidepressant medication, though was unable to tolerate a higher dose and has been reluctant to try different antidepressants. …
Despite the fact that many of her symptoms have persisted, there has been some slight improvement ins Mrs. Cvetic’s depression over the last year, I think in part related to the fact that she has been able to return to work, which has made her feel better about herself. It is possible that there will continue to be some further slight improvement even if she does not try alternative antidepressants … .“
(See page 128 of Exhibit A).
41 When seen by Mr Wilks in March 2008, the plaintiff describes crying “every second night”, to have suicidal thoughts, is irritable, wakes many times during the night due to worry, is fatigued, lacks interest in activities, is of low libido and is now some 6 kilograms heavier than she was in 2002. Furthermore, she now has “panics” once each week or two, as opposed to daily in past years.
42 Although Mr Wilks considered her depression to be “reasonably severe”, he is of the opinion that her psychology sessions should be reduced to once per fortnight with focus on her achieving a full-time workload.
43 When examined by Associate Professor Paoletti, he also observed the up- and-down movement of her right leg. In particular, he noted that the plaintiff had an anxious and depressed affect with depressive ideation but had no evidence of current hallucinations or flashbacks. He considered her concentration reasonably good, with no apparent deficits in memory or orientation. In particular, he considered that the plaintiff had control of the suicidal ideation.
44 Associate Professor Paoletti considered that the plaintiff was suffering from a Major Depressive Disorder, single episode chronic severe without psychotic features, together with an Anxiety Disorder not otherwise specified.
45 The solicitors for the defendants arranged for the plaintiff to be medico-legally examined by the psychiatrist, Dr Ian Jackson, on 17 December 2003 (see report dated 22 December 2003 at page 12 of Exhibit B); 5 February 2005 and 25 May 2005 (see report dated 31 May 2005 at page 20 of Exhibit B); 29 August 2007 (see report dated 10 September 2007 at page 25 of Exhibit B) and on 24 March 2010 (see report dated 26 March 2010). Dr Jackson also supplied several supplementary reports in respect to these examinations. The plaintiff was also examined by the clinical psychologist, Mr Robert Wilks, on 27 March 2008 (for which there did not seem to be a report).
46 The first examination by Dr Jackson was “incomplete” due to the state of the plaintiff. At that time, he was of the opinion that she suffered recurrent, classic panic attacks and was preoccupied with what she saw as mistreatment at her work. Dr Jackson thought this probably all in the setting of a depressive illness with depressive paranoid notions at least: interpersonal clashes with both management and co-workers at her work. At that time, Dr Jackson made a diagnosis of major depression with anxiety symptoms with panic attacks.
47 In a supplementary report dated 28 February 2005, following the second examination on 11 January 2005, Dr Jackson considered the plaintiff “symptomatically slowly improving and her incapacity for work is not indefinite” (see page 18 of “Exhibit B”). He did not consider that the plaintiff’s employment materially contributed to her developing a major depression with psychotic thinking.
48 When seen on 25 May 2005, Dr Jackson was of the opinion that her then psychiatric condition is recurrent anxiety with panic attacks, but that also she suffered an acute psychotic episode which included paranoid notions.
49 The plaintiff further attended Dr Jackson on 29 August 2007. In his report, he notes that she remains “extraordinarily difficult to assess” but considered the diagnosis to continue to be a Major Depressive Disorder in partial remission, whose continuing chronic symptoms are recurrent anxiety and phobic symptoms. In particular, he thought her current Depressive Disorder arose from a Major Depressive Disorder, severe with psychotic symptoms, and the delusions of this disorder still persist to some extent at the date of that examination. In particular, Dr Jackson was of the opinion that she was fit to return to employment but with considerable psychiatric supports.
50 The plaintiff was last seen by Dr Jackson on 18 February 2010. Dr Jackson describes “a striking change” in the plaintiff’s presentation compared to the earlier examination, and diagnoses her to be suffering from a Major Depressive Disorder close to full remission (including loss of any psychotic symptoms). In particular, Dr Jackson states:
“She is left with an irritable edge which appears a product of her personality and her situation. Her recovery is presumably related to her GP and Psychiatrist treatment particularly her antidepressant. I recommend that the antidepressant be continued for the foreseeable future which could be reviewed with slow lessening of frequency in her Psychiatrist contact.
However a major problem, as she sees it, is sleep disturbance. It is beyond my capacity to come to terms with her actual pattern of sleep or with her fixed idea that lack of sleep gives fatigue and an inability to cope with morning shifts, which in turn removes her from contact with her family. Whatever the case she is psychiatrically fit for any form of employment including her current employment. I remain in the dark but I can see no clear reason for her described sleep disturbance and can only speculate that her inability to work in the mornings is associated with unknown family dynamics. …
She has essentially recovered and thus does not have permanent
incapacity.”
[my emphasis]
(See page 40 of Exhibit B)
51 It is to be noted that one of the issues raised by the plaintiff in the last examination by Dr Jackson was that she was unable to work in a morning shift because of tiredness secondary to her lack of sleep.
Analysis of the Evidence
52 For present purposes, there is no issue that the plaintiff suffered a psychiatric injury arising out of and in the course of her employment with the first defendant. Indeed, there is adequate support for such a proposition from the treating doctors and psychologists over the years.
53 Although there have been different emphases on various aspects of the condition, many doctors have described her condition as a major depression associated with psychotic features.
54 I am satisfied that the plaintiff had suffered a mental or behavioural disturbance or disorder within the meaning of paragraph (c) of s.134AB(37) of the Act. Furthermore, given the length of time that she has suffered symptoms, and taking account of all the evidence, I also find that such condition is “permanent” as that term is used in s.134AB of the Act. In this respect, I note that Dr Jackson, who examined the plaintiff on a number of occasions from 2003 to 2010, considers that her major depression is in remission and the plaintiff has “essentially recovered”. Having viewed the plaintiff, and considering the other evidence, I accept that there has been some real improvement in the plaintiff’s condition over the ensuing years, but doubt that she has “essentially recovered”. Furthermore, the words “in remission” do not necessarily mean that someone is “cured”.
55 The plaintiff gave her evidence with a largely flat effect but had no difficulty coping with the cross-examination and on occasions smiled at appropriate times. Taking into account all the evidence, I find that she has an ongoing psychiatric condition with some consequences. The issue becomes whether such consequences are “severe” within the meaning of the Act.
56 The narrative test requires that such consequences “when judged by a comparison with others in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly described as being more than serious to the extent of being severe”.
57 Paragraph (a) of the definition of serious injury, which generally deals with physical injury, requires that the consequences be “serious”. That is, when compared with other cases in the range of possible impairments or losses of body function, can the consequences be fairly described as being “more than significant or marked, and as being at least very considerable”?
58 I also refer to the Second Reading Speech of the Bill introducing s.134AB of the Act. It states, in part:
“… The government recognises it is proper to maintain a higher threshold requirement for a mental or behavioural disturbance or disorder due to the degree of subjectivity involved in such a condition. The code does not define the meaning of the word 'severe'. The meaning of that word was considered by the Court of Appeal in Mobilio v. Balliotis & Ors [1998] 3 VR 833. The Court of Appeal decided that the words 'serious' and 'severe' should not be equated and that the word 'severe' has a stronger meaning than the word 'serious'. The government accepts the correctness of that approach in respect of the determination of the consequences of pain and suffering. … .”
59 Counsel for the defendants, in his cross-examination and address, highlighted the activities undertaken by the plaintiff, particularly from 2005, when she commenced to obtain TAFE certificates which involved study and mental application, her commencement of employment, the number of hours that she is presently employed, her weekly earnings, her day-to-day activities and her relatively small number of attendances on her psychiatrist over the last eighteen months or so, all of which, he submitted, did not bespeak of a “severe” condition.
60 Counsel for the plaintiff, although accepting that the broad facts of the plaintiff working as she does and her undertaking the TAFE courses would not, at first blush, amount to a “serious injury”, submits that the evidence of the plaintiff, her husband and daughter, together with various histories given to doctors, all paint a picture of significant consequences being experienced by the plaintiff at home, including panic attacks, crying at home, inability to sleep and inability to interact with her family and friends, and general withdrawal.
61 There is some force in such a submission when one does consider the uncontested evidence of the husband, daughter and the plaintiff in respect to her symptoms and consequences. In this respect, I do find the following facts:
(a) The plaintiff does continue to suffer “panic attacks”, although it is not clear as to the frequency of such attacks. Whereas the plaintiff has given evidence through her second affidavit that such attacks occur “sometimes two times a week; sometimes more often”, the treating psychiatrist, Dr Kaplan, describes them as “occasional panic attacks”. (b) The plaintiff continues to suffer from intrusive thoughts and nightmares in relation to her past work experiences. (c) Although there is no direct evidence as to causation, I note that several of the psychiatrists during clinical examinations note a constant movement of her right leg, with the inference being that this is some type of manifestation of her psychiatric injury. (d) She is teary and anxious at home with members of her family. (e) Although she may well have had a suicidal ideation in the past, present psychiatric opinion would suggest that that has largely resolved. 62 However, the continuation of the aforesaid symptoms must be seen in the context of a woman who has:
(a) shown gradual improvement in her condition over the years; (b)
has, from 2005, obtained a Certificate II in Retail Operations (2005), a Certificate III in Aged Care Worker (2006), a Certificate III in Pathology Specimen Collection (2007) and a Certificate IV in Pathology Specimen Collection (2007). To her credit, she has had the determination and the mental capacity to apply for and succeed in these courses;
(c)
demonstrated that she is capable of performing two part-time jobs, commencing quite early in the morning, and finishing the second job quite late at night. In particular, I refer to her evidence on page 11 of these Reasons, which sets out her activities on a working day. Such activity involves driving to and from work and having contact with people both in the nursing home and at the pathology clinic. Furthermore that work is not prevented by panic attacks or anxiety symptoms.
(d)
the evidence would suggest that, contrary to what she deposes in her affidavit about attending Dr Kaplan once per month, such attendances are far less frequent, with the inference that she has chosen not to attend on a monthly basis;
(e) I also make mention that she is clearly taking medication for her psychological condition. Such medication clearly improves her functioning, and according to Dr Jackson, effectively alleviates most of her symptoms. I am of the view, in the absence of evidence of deleterious effects from the ongoing treatment, the taking of treatment in itself is not a “severe” consequence. 63 After a consideration of all of the evidence and taking account of the demeanour and presentation, I am not persuaded the psychiatric disorder suffered by the plaintiff is “severe” within the meaning of the Act. Although accepting that she has ongoing consequences which on one view may even be described as “serious”, I am of the opinion that her demonstrated ability to be able to study and obtain her various certificates, her capacity to hold down two jobs, in such a way as she has described to the Court, her general demeanour at the Court and her diminishing attendances on her psychiatrist, all point against such condition being “severe”.
Conclusion
64 Accordingly, I dismiss the application and will hear the parties on costs.
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